76LRedeployment and retirement of SES officers

##### 76L Redeployment and retirement of SES officers (1) Where, in relation to a Senior Executive Service officer of a particular classification, the Commissioner, after having taken reasonable steps to identify Senior Executive Service offices: (a) that are of the same or equal classification; (b) to which the officer could be transferred or the duties of which the officer could be directed to perform; and (c) the duties of which the officer could, in the opinion of the Commissioner, perform efficiently; is satisfied that the services of the officer cannot reasonably be used in the Service in the performance of the duties of, or duties appropriate to, a Senior Executive Service office of the same or equal classification, the Commissioner may give notice to the officer under subsection (3). (1A) The Commissioner must not make a decision for the purposes of subsection (1) unless: (a) the Commissioner has given the officer written notice that the Commissioner is considering whether the services of the officer can reasonably be used in the Service in the performance of the duties of, or duties appropriate to, an SES office of the same or equal classification; and (b) the notice invites the officer to give to the Commissioner his or her views in relation to the matter being considered by the Commissioner within a specified period; and (c) the specified period has expired. (1B) The period to be specified in a notice under subsection (1A) is a period of 14 days commencing on a specified day not earlier than the day on which the notice is given. (1C) A notice under subsection (1A) may be given by post. (2) In determining for the purposes of subsection (1) whether an officer could perform the duties of an office in a Department efficiently, the Commissioner shall have regard to: (a) the standard of work performed by the officer as a Senior Executive Service officer (including any relevant appraisal of the performance of the officer); (b) the experience possessed by the officer relevant to the performance of those duties; (c) the training and educational qualifications of the officer; (d) any personal qualities of the officer relevant to the performance of those duties; (e) any physical or mental incapacity of the officer relevant to the performance of those duties; (f) any views of the officer in relation to the matter to be determined given by the officer to the Commissioner in accordance with a notice given to the officer under subsection (1A); (fa) the views of the relevant Secretary in relation to that matter; and (g) any other matter that the Commissioner considers relevant. (3) Where subsection (1) applies in relation to an officer, the Commissioner may give notice in writing to the officer that: (a) the officer is assigned to a specified office of a lower classification; (b) the officer is to become an unattached officer of a lower classification or, being an unattached officer, is to have a lower classification and, in either case, that the officer is included in the Department specified in the notice; or (c) the officer is to be retired from the Service. (3A) An officer may, before being given a notice under subsection (3), consent, by notice in writing given to the Commissioner, to the giving of the first‑mentioned notice. (3B) Where subsection (1) applies in relation to an officer, the Commissioner may give written notice to the officer that the Commissioner is considering giving the officer notice under subsection (3) and specifying the effect of the proposed notice. (3C) A notice under subsection (3B) must invite the officer to whom it is given to give to the Commissioner his or her views in relation to the proposed notice under subsection (3) within a specified period. (3D) The period to be specified for the purposes of subsection (3C) is a period of 14 days commencing on a specified day not earlier than the day on which the invitation under that subsection is given to the officer. (3E) The Commissioner must not give notice under subsection (3) unless he or she has given the officer concerned notice under subsection (3B) and the period specified in the notice has expired. (3F) A notice under subsection (3B) may be given by post. (4) In determining whether to give an officer notice under subsection (3), the Commissioner shall have regard to: (a) the need to ensure the efficiency of the Service; (b) the period within which the officer may reasonably be expected to retire under section 76I, 76J or 76N; (c) any views in relation to the proposed action under subsection (3) given by the officer to the Commissioner in accordance with an invitation under subsection (3B); and (d) any other matter that the Commissioner considers relevant. (5) Subject to subsection (5A), a notice to an officer under subsection (3) shall state that: (a) the officer has a right to appeal, within the period prescribed for the purposes of this paragraph, to an Appeal Committee under section 76M against the giving of the notice; and (b) the notice will, subject to any appeal under section 76M, take effect on a specified day, being a day not earlier than the expiration of the period referred to in paragraph (a). (5A) A notice under subsection (3) to an officer who has, under subsection (3A), consented to the giving of the notice shall state that the notice will take effect on a specified day, being a day not earlier than the day on which the notice is given to the officer. (6) For the purpose of giving effect to a notice given under subsection (3), the Commissioner may: (a) by notice in writing given to the Secretary of a Department in which a specified office exists, or in which any offices included in a specified class of offices exist, direct that, until the notice is revoked, a transfer or promotion of an officer to fill a vacancy in the office, or in an office included in the class of offices, shall not be made under section 50 or 50DA unless the Commissioner has approved the filling of the vacancy; (b) determine, in writing, that a promotion that has been notified under section 50 or 50DA but has not taken effect shall not take effect while the determination is in force; and (c) cancel a promotion that has been notified under section 50 or 50DA but has not yet taken effect, whether or not, in the case of a promotion notified under section 50, an appeal has, or appeals have, been made against the promotion. (7) A notice given to an officer under subsection (3) takes effect as provided by the regulations. (9) The power conferred on the Commissioner by paragraph (6)(a) is in addition to, and not in substitution for, the power conferred on the Commissioner by section 50G. (10) This section applies in relation to a person who becomes a Senior Executive Service officer under subsection 76F(1A) as if paragraph (3)(a) and subsection (6) were omitted and as if “, in consequence of physical or mental incapability of the officer,” were inserted in subsection (1) after “is satisfied that”. (11) Where, in pursuance of paragraph (6)(b), the Commissioner determines that a promotion shall not take effect while the determination in relation to that promotion is in force, the Commissioner may, at any time while the determination is in force, cancel the promotion in pursuance of paragraph (6)(c). (12) If the Commissioner revokes a determination under paragraph (6)(b), the promotion to which the determination relates takes effect on the day on which it would have taken effect if the determination had not been made, but the Commissioner may, in the instrument of revocation, determine that salary at the rate applicable to the office to which the promotion was made is payable to the officer concerned on and from a day (not being a day after the day on which the instrument of revocation was made) after the prescribed day in respect of the promotion. (13) Where the Commissioner, in a determination under paragraph (6)(b), specifies a day on and from which salary at a particular rate is payable to an officer, salary at that rate is payable on and from that day notwithstanding section 50E. (14) In this section, prescribed day, in relation to a promotion has the same meaning as in Division 4.